Carbon Five Terms of Use

Last Updated: OctoBer 26, 2018

These Terms of Use (these “Terms”) are a legal agreement between you and Carbon Five, Inc. (“Carbon Five,” “we,” or “our”) providing, among other things, the terms and conditions of your use the websites and web applications (including the Product Dartboard application) (the “Website(s)”), downloadable software that Carbon Five makes available to you at the Websites (the “Software”), and all proprietary services, data, and materials accessed via the Websites or Software (the “Services”). The Websites, Software, and Services are sometimes individually referred to in these Terms as a “Property” or collectively as the “Properties.”

Agreement. By browsing, accessing, or using any Property, you agree to these Terms. If you do not agree to these Terms, you are not authorized to use the Properties.

Disclaimers. THESE TERMS INCLUDE PROVISIONS THAT LIMIT THE WARRANTIES AND LIABILITIES OF CARBON FIVE.

General Terms. These Terms hereby incorporate any additional terms provided to you by Carbon Five on the Websites or when you access Properties, for example, additional service terms or software license terms. To the extent there is a conflict between these Terms and such additional terms, such additional terms will prevail.

Update of Terms. We may, from time to time, modify these Terms and our Privacy Policy. You will be deemed to have accepted these Terms and our Privacy Policy, as may be amended, each time you use any of the Properties.

Contact. If you have any questions or concerns about these Terms, you may contact us by email at productdartboard@carbonfive.com.

1. Requirements; Accounts; Messages

1.1 Requirements

You may not use the Properties unless you are at least 13 years of age. You represent that you have read and understood, and that you agree to be bound by, these Terms. If you do not agree to, or cannot comply with, any of the terms and conditions of these Terms, please do not agree to them and do not attempt to access any of the Properties.

1.2 Accounts

You may be required to register and provide certain information, including, for example, a member or username, a password, and a valid email address (the “Account Information”) before using the Properties. You agree to provide accurate Account Information and to update such information as necessary to keep it accurate. You agree to notify us immediately of any unauthorized use of your Account Information or account. Carbon Five is not responsible for any losses arising out of the unauthorized use of your Account Information or account and you agree to indemnify and hold harmless Carbon Five, its partners, parents, subsidiaries, agents, affiliates and licensors, as applicable, for your improper, unauthorized, or illegal uses of the same.

1.3 Messages

By providing Carbon Five with your email address or mobile phone number, you consent to our using the email address or number to send you notices related to your use of the Properties, including notices required by law and in lieu of postal mail. You may not opt out of such notices.

2. Privacy

You acknowledge that you have read and understand the Carbon Five Privacy Policy. Our Privacy Policy is hereby incorporated into these Terms.

3. Use Rights

3.1 License

Subject to your compliance with these Terms and any additional terms made available to you by Carbon Five, Carbon Five grants you the limited, non-exclusive, non-transferable right to access and use the Properties only with supported browsers and devices, and solely in the manner and for the purposes described in these Terms, on the Websites, or in any relevant Carbon Five documentation. You may install and use one copy of downloaded Software only in a manner consistent with its documentation and design.

4. Obligations and Restrictions

4.1 Obligations

You will: (1) maintain the confidentiality of any password issued by Carbon Five and restrict access to your computer so that others may not access any password-protected portion of the Properties using your name, user name, or password in whole or in part; (2) accept responsibility for all activities that occur under your account or password; and (3) monitor your Service account(s) to restrict use by minors, and deny access to children under the age of 13, accept full responsibility for any unauthorized use of any Service by minors in connection with your account.

(4) create more than one Service account for the same Service at any given time or create an account using a false identity or information, or on behalf of someone other than yourself

(5) create a Service account or use any Property if you have previously been removed by Carbon Five

(6) use any Property if you are prohibited by U.S or other law from doing so, for example, because you are located in a nation embargoed by the United States

(7) use your Service account to advertise, solicit, or transmit any commercial advertisements, including chain letters, junk email, or repetitive messages

(8) use your Service account or any other Property for any illegal purpose

(9) use any software, bots, hacks, mods or any unauthorized software to modify, disable, or interfere with any Property, or to assist anyone to do so

(10) decompile, reverse engineer, or otherwise attempt to discover the source code of any Property

(11) disrupt, overburden, or aid or assist in the disruption or overburdening of, any computer or server used to offer or support any Property

(12) attempt to gain unauthorized access to any Property or to the computers, servers, or networks connected to any Property by any means other than the user interface provided by Carbon Five, including but not limited to, by circumventing or modifying, attempting to circumvent or modify, or encouraging or assisting any other person to circumvent or modify, any security, technology, device, or software that is part of any Property

(13) upload to any Service or create a link from any Property or from User Content to any file, content, or other information that is illegal, untrue, abusive, threatening, obscene, defamatory, libelous, or racially, sexually, or religiously offensive, or that promotes any of the foregoing, or that is otherwise objectionable or offensive

(14) upload to any Service or create a link from any Property or from User Content to any file, content, or other information that contains nudity, excessive violence, or offensive subject matter or that contains a link to such content

(15) harass, abuse, or harm, or advocate or incite harassment, abuse, or harm of another person, or group, including Carbon Five employees

(16) make available through any Property any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity, or other right of any person or entity or impersonates any other person

(17) use any Property to publish, solicit, or collect personal data, including telephone numbers, addresses, last names, email addresses, or any kind of information about users, including without limitation, through such means as spidering, screen scraping, database scraping, harvesting, or any other automatic means of accessing, logging-in, or registering on a Property

(18) make any Service or other Property available over a network not controlled by Carbon Five where it could be used by others

(19) link any User Content or Service to any file sharing or torrent sites or use any Property as a content delivery site

(20) use, copy, distribute, or otherwise exploit the Properties other than as expressly permitted by these Terms. We will contact the authorities in the event that we discover that you are using any Property in any illegal manner or for any illegal purpose.

5. Ownership

You acknowledge that the Properties are owned by Carbon Five and its licensors. All title and intellectual property rights in and to the Properties are the property of the respective owner and may be protected by applicable copyright or other intellectual property laws and treaties and subject to use restrictions under such laws or treaties. Except as expressly granted in these Terms, Carbon Five does not grant any rights in the Properties.

6. Trademarks

You are not granted any right or license in any trademark, including the Carbon Five trademark or logo. Please contact Carbon Five for information about the use of its trademarks.

7. User Content

“User Content” means any communications, images, sounds, videos, and all the material, data, and information that you or any other user uploads or transmits through any Property. You retain ownership of any intellectual property rights that you hold in the User Content that you upload or transmit. You agree that all User Content that you upload or otherwise transmit while using a Property will

(1) not violate applicable law, contractual restriction, or third party right, and that you have necessary permission from any third party whose personal information or intellectual property is included in the User Content

(2) be free of viruses, adware, spyware, worms or other malicious code.

Any personal information within User Content may be used by Carbon Five in any manner that is not prohibited by its Privacy Policy. You own your User Content. You hereby grant Carbon Five and its employees, subsidiaries, and affiliates a perpetual and irrevocable (other than as provided below), worldwide, fully paid-up, and royalty free, non-exclusive, unlimited license, including the right to sublicense and assign to third parties, and right to copy, reproduce, fix, adapt, modify, improve, translate, reformat, create derivative works from, manufacture, introduce into circulation, commercialize, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice, in any way now known or in the future discovered, your User Content as well as all modified and derivative works thereof. But you grant us these rights only for purposes of operating, promoting, and improving our Properties, and to develop new ones. This license continues even if you stop using our Properties. Some Properties may offer you ways to access and remove User Content that has been provided to that Property. To the extent permitted by applicable laws, you hereby waive any moral rights you may have in any User Content. You are entirely responsible for all of your User Content. Carbon Five assumes no responsibility for the conduct of any user submitting any User Content and assumes no responsibility for monitoring the Properties for inappropriate or illegal content or conduct. If Carbon Five chooses at any time, in its sole discretion, to monitor a Property, we have the right, in our sole discretion, to edit, refuse to post, or remove any User Content and may monitor and record your interaction with the Property or communications when you are using the Property. If you terminate your account, and you provide Carbon Five with a request to delete your User Content from the Properties, then Carbon Five will make reasonable efforts to do so.

8. Disclaimers

8.1 No Warranty

UNLESS EXPRESSLY PROVIDED BY CARBON FIVE IN ADDITIONAL TERMS, THE PROPERTIES ARE PROVIDED “AS-IS.” ANY USE OF THE PROPERTIES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CARBON FIVE AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, AND NON-INFRINGEMENT. CARBON FIVE MAKES NO REPRESENTATIONS OR GUARANTEES THAT THE PROPERTIES WILL BE FREE FROM LOSS, ERROR, DESTRUCTION, DAMAGE, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND CARBON FIVE DISCLAIMS ANY LIABILITY RELATING THERETO. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY OR MAY NOT APPLY TO YOU.

8.2 Discontinuation

UNLESS OTHERWISE AGREED BY CARBON FIVE IN WRITING, CARBON FIVE MAY, WITHOUT PRIOR NOTICE, MODIFY, SUSPEND, OR DISCONTINUE AN OF ITS PROPERTIES (INCLUDING ANY CONTENT) OR YOUR USE OF THEM. WHENEVER CARBON FIVE ELECTS TO MODIFY, SUSPEND, OR DISCONTINUE THE PROPERTIES, IT WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY. CARBON FIVE WILL HAVE NO OBLIGATION TO YOU FOR YOUR LOST CONTENT.

9. Limitation of Liability

9.1 No Consequential Damages

IN NO EVENT SHALL CARBON FIVE, ITS OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS, OR SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT FORESEEABLE OR IF CARBON FIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR BASED ON ANY THEORY OF LIABILITY, INCLUDING BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE, OR OTHER TORTIOUS ACTION, OR ANY OTHER CLAIM ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR ACCESS TO THE PROPERTIES.

9.2 Aggregate Limit

CARBON FIVE’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES AND SUPPLIERS UNDER OR IN CONNECTION WITH THESE TERMS SHALL BE LIMITED TO US $5. THE ABOVE LIMITATIONS WILL APPLY EVEN IF CARBON FIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

9.3 Applicability

THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES. ACCORDINGLY, THE LIMITATIONS AND EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.

10. Third Party Services

10.1 Websites and Vendors.

The Properties may include links on to third party websites or vendors (“Third Party Vendor”). Carbon Five makes no representation or warranty regarding any content, goods, or services provided by any Third Party Vendor even if linked to from its Properties, and will not be liable for any claim relating to any third party content, goods, or services. Third Party Vendors are not under the control of Carbon Five and may collect data or solicit personal information from you. Carbon Five is not responsible for their content, business practices, or privacy policies, or for the collection, use, or disclosure of any information Third Party Vendors may collect. Further, the inclusion of any link does not imply endorsement by Carbon Five of Third Party Vendors.

11. Indemnity

You will indemnify and hold Carbon Five, its directors, officers, employees, affiliates, agents, contractors, and suppliers harmless from any damages, liabilities, or expenses arising from or based upon your failure to comply with these Terms. Carbon Five may, at your expense, assume the exclusive defense and control of any matter for which you are required to indemnify Carbon Five, and you agree to cooperate with Carbon Five’s defense of these claims. Carbon Five will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it. This Section will survive any termination of your Service accounts or right to use any other Property.

12. Copyright Infringement

12.1 DMCA

Carbon Five will respond to clear notices of copyright infringement consistent with the Digital Millennium Copyright Act, 17 USC 512(c)(2) (“DMCA”) and its response to such notices may include removing or disabling access to the allegedly infringing content, terminating the accounts of repeat infringers, and making good-faith attempts to contact the user who posted the content at issue so that he or she may, where appropriate, make a counter-notification.

12.2 Notice

If you believe that your work has been used or copied in a way that constitutes copyright infringement and such infringement is hosted by Carbon Five, please provide, pursuant to the DMCA, written notification via regular mail or via fax (not via e-mail or phone) of claimed copyright infringement to Carbon Five’s Copyright Agent (contact information below). The notice must include all of the following elements: (1) a physical or electronic signature of the owner, or person authorized to act on behalf of the owner, of the copyright interest that is alleged to have been infringed; (2) a description of the copyrighted work(s) that you claim to be infringed and an identification of what content is infringing and that you request to be removed or disabled; (3) a description of where the material that you claim is infringing is located in the Properties; (4) information sufficient to permit Carbon Five to contact you, such as your physical address, telephone number, and email address; (5) a statement by you that you have a good faith belief that the use of the content identified in your notice in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (6) a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf. Before you file such a notification, please carefully consider whether or not the use of the material at issue is protected by the “fair use” doctrine, as you could be liable for costs and attorneys’ fees should you file a takedown notice where there is no infringing use. If you are unsure whether a use of copyrighted material constitutes infringement, please contact an attorney.

12.3 Counter-Notification

If you believe access to your content was disabled or removed by Carbon Five as a result of an improper copyright infringement notice, please provide, pursuant to the DMCA, written notification via regular mail or via fax (not via e-mail or phone) to Carbon Five’s Copyright Agent (contact information below), which must include all of the following elements:

(1) your physical or electronic signature

(2) identification of the material that was removed from the Services and the location of the Service on which the material appeared before it was removed

(3) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled

(4) information sufficient to permit Carbon Five to contact you, such as your physical address, telephone number, and email address

(5) a statement that you consent to jurisdiction of the Federal District Court for the district where you reside (or for San Francisco, California if you reside outside of the United Sates) and that you will accept service of process from the person who provided notification under DMCA subsection (c)(1)(C) or an agent of such person. Before you file such a counter-notification, please carefully consider whether or not the use of the copyrighted material at issue is infringing, as you could be liable for costs and attorneys’ fees in the event that a court determines your counter-notification misrepresented that the material was removed by mistake. If you are unsure whether use of the material at issue constitutes infringement, please contact an attorney.

12.4 Copyright Agent

13. Termination

Carbon Five will determine, in its sole discretion, your compliance with these Terms and may immediately terminate your access and right to use the Properties if you fail to comply. Unless otherwise agreed by Carbon Five, for example in the separate terms of a paid-for service provided by Carbon Five, Carbon Five may terminate your access and right to use the Properties for any reason, or no reason, in its sole discretion. You may cancel any Service account at any time by following the instructions on the relevant Property.

14. General

14.1 Facilities and Modification to Properties

You are responsible for providing the DSL, cable modem, and any other hardware and software necessary to use the Properties. Carbon Five may at any time and from time to time modify or discontinue, temporarily or permanently, any Property with or without notice.

14.2 Governing Law; Forum

These Terms are governed by the laws of the State of California. The exclusive jurisdiction for any claim, action, or dispute with Carbon Five or relating in any way to your use of the Properties will be in the state and federal courts located in the State of California and the venue for the adjudication or disposition of any such claim, action, or dispute will be in San Francisco County, State of California, if in state court or the Northern District of California if in federal court. This provision does not prevent any party from seeking injunctive or other emergency relief in any competent jurisdiction.

14.3 Severability

If any portion of these Terms or of the Carbon Five Privacy Policy is found illegal or unenforceable in whole or in part by any court of competent jurisdiction, such provision shall, as to such jurisdiction, be ineffective solely to the extent of such determination of invalidity or unenforceability without affecting the validity or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of these Terms, which shall continue to be in full force and effect.

14.4 Assignment

Carbon Five may assign or delegate these Terms, in whole or in part, to any person or entity at any time with or without your consent. You may not assign or delegate any rights or obligations under these Terms without Carbon Five’s prior written consent, and any unauthorized assignment and delegation by you is void and ineffective.

14.5 Entire Agreement

These Terms (including the Carbon Five Privacy Policy and any other additional terms incorporated by reference herein), contain the entire understanding of you and Carbon Five, and supersede all prior understandings of the parties hereto relating to the subject matter hereof, whether electronic, oral or written, or whether established by custom, practice, policy or precedent, between you and Carbon Five with respect to the Properties.

14.6. Waiver

The failure of Carbon Five to require or enforce strict performance by you of any provision of these Terms or failure to exercise any right under them shall not be construed as a waiver or relinquishment of Carbon Five’s right to assert or rely upon any such provision or right in that or any other instance.

14.7. Modification

Except as expressly and specifically set forth in this these Terms, no representations, statements, consents, waivers, or other acts or omissions by Carbon Five shall be deemed a modification of these Terms nor be legally binding unless documented in physical writing, hand signed by you and a duly appointed officer of Carbon Five.

14.8 Notices

We may notify you via postings on a Website or via email or any other means to the contact address you provide to us. All notices given by you or required from you under these Terms will be in writing and addressed to: Carbon Five Inc., 585 Howard Street, San Francisco, CA 94105, Attn: Legal Department. Any notices that you provide not in compliance with this Section will have no legal effect.